Submission to the Competition and Consumer Protection
Commission on the Strategy Statement Consultation
By
Paul K Gorecki
ESRI Research Affiliate
13 February 2015
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Introduction
It is important that the newly created Competition and Consumer Protection Commission (CCPC) gets its
first Strategy Statement right. It is important because this Strategy Statement is likely to exercise a long
lasting influence over the agency. It will be the point of departure for future strategies.
Given the importance of getting it right, it therefore to be welcomed that the CCPC is seeking feedback
and comment on its Strategy Statement, with the publication, in January 2015, of Consultation on
Strategy (Consultation Paper). The Strategy Statement, it is anticipated, will be finalized by the end of
April.
In announcing the consultation the CCPC stated that its Strategy Statement
… will set out what we plan to achieve over the first three years of our existence and
how we intend to achieve these objectives. This consultation provides an opportunity
for all stakeholders to shape the direction of the new organisation.1
Hence the Strategy Statement will set the concrete steps that the CCPC will take into order to achieve its
objectives.
The purpose of the Consultation Paper exercise ‘is to ask our stakeholders how the Commission should
choose areas to focus on in order to deploy our resources in areas and on issues where we can have the
greatest impact’ (p.5). The Consultation Paper describes three activity areas:

advocating for more competition in markets;

delivering on our law enforcement mandate, including ensuring compliance; and,

empowering consumers.
In each case a similar consultation question is asked concerning priority setting in the particular activity
area.
In our response we will, however, comment on other aspects of the Consultation Paper, including the
CCPC’s proposed mission statement and values.
1
http://www.ccpc.ie/news/2015-01-26-public-consultation-competition-and-consumer-protection-commissionsstrategy
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Mission Statement: Why Business?
The Consultation Paper sets out the ‘mission’ or objective of the CCPC is ‘to make markets work better
for consumers and businesses’ (p. 2). The CCPC has a number of tools/roles that it can use/play to meet
this objective, including: ‘enforcing competition and consumer law’; ‘informing and advocating on
competition and consumer issues’; ‘helping consumers make informed decisions’; and, ‘having a positive
influence on markets and to make Ireland a better place to do business and to be a consumer’ (p.6).
It would be helpful if some context could be given to the role of the CCPC ‘to make markets work well
for businesses’ and ‘to make Ireland a better place to do business.’ The functions of the CCPC, as set out
in section 10 of the Competition and Consumer Protection Act 2014, stress almost exclusively the
function of promoting and protection the interests and welfare of consumers, not business. To the
extent that there is a conflict between promoting the interests of consumers and promoting the
interests of business then, given the unorganized fragmented nature of consumers, the consumer
interest could easily suffer.
Values: Transparency and Accountability
The Consultation Paper (p. 4) sets out the CCPC’s five high level values – effectiveness, efficiency,
impartiality, excellence, and respect. There is no reference to the new agency operating in an open and
transparent way. Such openness and transparency is essential if the CCPC is to be held to account by
elected representatives and taxpayers that fund the agency and expect value for money.
The CCPC might consider adopting the practice of other agencies to increase transparency. The UK
Competition and Markets Authority, for example, releases the minutes of its board meetings.2 The
Council of the Pharmaceutical Society of Ireland has a public board meeting session and a private board
meeting session.3 In the former guidelines, for example, are discussed, in the latter fitness to practice
matters. The parallel with the CCPC is obvious: matters of enforcement would be in a private session,
while (say) merger guidelines could be discussed in the public session.
In terms of providing information on its operations, the CCPC could consider publishing, on an annual
basis, the breakdown of the allocation of resources across its 12 divisions, which vary from ‘Consumer
2
The CMAs December 2014 Board Minutes may be found here:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/397404/CMA_Board_public_mi
nutes_December_2014.pdf
3
I am a member of the Council of the Pharmaceutical Society of Ireland.
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Enforcement’ to ‘Advocacy and Market Intelligence.’4 Such information would be useful for elected
representatives in, for example, assessing where the CCPC allocates its resources and whether this
matches the CCPC’s declared priorities. The Competition Authority recently ceased publishing such data
in its Annual Report.5 It would be troubling from a transparency and accountability perspective if this
policy is continued by the CCPC.
CCPC’s Views on Priorities: the Gaps
The merger of the Competition Authority and the National Consumer Agency has been in the works
since 2008. Briefings were given by representatives of agencies from other jurisdictions where the
consumer and competition functions were conducted within the same agency. Numerous meetings have
been held in advance of the merger of the two bodies to form the CCPC. These meetings no doubt
touched on the issue of priority setting. It seems to me that it would have very helpful – indeed vital - to
the consultation process for the CCPC to share those thoughts with the CCPC’s stakeholders for
comment. In some cases it may not be clear to the CCPC what rule should be applied or what should
take priority.
Putting up these questions for discussion could lead to real engagement with
stakeholders.
Priority Setting: the Macro-Level
The CCPC requests views on how priorities can be set within the three activity areas, but does not ask
for guidance on the allocation of resources – priority setting – across or between the three activity
areas. This is vitally important question of priorities. The CCPC could have made the consultation
exercise more meaningful by providing data to inform the debate. More specifically, as noted above,
the CCPC has already decided on a 12 division structure. It would have been very helpful if a description
of the function of each division together with the number of staff had been included in the Consultation
Paper. Stakeholders could then have – albeit in a rough and ready way – mapped the allocation of
resources into the three activity areas and commented on the implied priorities.
Although the Consultation Paper does not discuss setting priorities across advocacy, enforcement and
empowerment, the fact that the Consultation Paper lists them in that order could be interpreted to
mean that the first priority of the CPCC is advocacy over enforcement. This would certainly be a reversal
4
http://www.ccpc.ie/who-we-are
Prior to its 2012 Annual Report the Competition Authority published ‘Organisational Structure of the Competition
Authority,’ which contained such information.
5
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of the priorities of the Competition Authority, both in its rhetoric and in the allocation of resources.
Much advocacy would lose its edge without a solid record of enforcement.
Priority Setting: the Micro-Level
Turning now to the questions raised in the Consultation Paper.
First, the issue of priorisation has already been extensively addressed by the Competition Authority in its
Project Selection and Priorisation Principles paper of July 2011, which summarized these principles under
five headings:

significance of the issue or effect of the conduct in question;

impact of the Competition Authority’s action;

wider economic significance of the markets involved;

strategic significance; and,

risks, resources and costs.
These can be applied to the topics raised in the Consultation Paper.
Second, in terms of enforcement no priorities are suggested by the Consultation Paper (pp.12-14),
although reference is made to cartels being a ‘serious white collar crime’ (p.11). In contrast, the
Competition Authority in its Strategy Statement 2012-2014 stated
Cartels are the most serious form of anticompetitive behaviour. So stopping cartels
remains the Authority’s top enforcement priority (p.5).
There seems little reason to change or revise this latter view, unless of course some of the consumer
protection legislation listed in the Consultation Paper (pp. 11-12) is much more detrimental to
consumers than cartels.
A related question concerns how to ensure compliance with competition and consumer law. Apart from
guidance notes, compliance can be ensured through a robust and successful record of prosecutions,
particularly for hard core cartels. The Consultation Paper recognizes the complementary nature of the
relationship between enforcement and compliance. However, a major deficiency in competition law
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enforcement in Ireland has been the lack of cartel prosecutions. Both of the cartel cases initiated in the
Courts in 2008 were unsuccessful raising issues over case selection.6
Conclusion
The Consultation Paper on the CCPC’s first Strategy Statement seeks to engage stakeholders over a
relatively narrow, albeit very important, set of issues relating to priority setting. However, given the
importance of this Strategy Statement to the CCPC’s future, this submission has gone beyond the
narrow confines of the questions posed in the Consultation Paper to address issue relating to the
mission and values of the CCPC.
6
These issues are discussed further in Terry Calvani and Kaethe M Carl, “The Competition Act 2002, ten years later:
lessons from the Irish experience of prosecuting cartels as criminal offences.” Journal of Antitrust Enforcement,
2013, Vol 1, No. 2, pp. 296-324.
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